In this decision, the Italian Supreme Court addresses the issue of the scope of application of the general rule on abuse of economic dependence (provided by article 9 of the Law no. 192/1998 related to subcontracting in production activities) in relation to a franchising agreement.
The application of the above-mentioned rule on economic dependence requires two conditions to be met: (a) the existence of a relationship of economic dependence between the economic entities involved, i.e. between the customer company, in this case the franchisee, and the supplier company, in this case the franchisor, and, consequently, (b) the abuse of that position in such a way as to create an imbalance of rights and obligations. These conditions must be assessed not only on the basis of the literal terms of the contract but also by evaluating factual elements external to the contractual relationship.
The Italian Supreme Court (third and last degree of judgement) stated that the Court of Appeal (second degree of judgement), declaring the existence of such situation of abuse of economic dependence, didn’t take into account the entire and complex relationship between the parties; therefore, in the referral judgment, the Court of Appeal is asked to explain why, at the time the franchise agreement was signed, the franchisor was in a dominant position such as to cause, with reference to the objective content of the contractual clauses, an excessive imbalance of rights and obligations between the parties, such as the franchisee was unable to find any real economic alternatives on the market and was therefore in a position to suffer the aforementioned imbalance.
Article by VENTURELLO E BOTTARINI, AVVOCATI (Italy)
